The
Trade-Related Aspects of Intellectual Property Rights, including Trade
in Counterfeit Goods (TRIPS) Agreement has three main features:
-
the establishment of minimum substantive standards of protection
for each of the main categories of intellectual property rights
(IPRs);
-
the specification of procedures
and remedies to be available in national law so that the rights
can be effectively enforced; and
-
the application of the WTO
dispute settlement mechanism to TRIPS obligations
The
Agreement also specifies certain basic principles, notably national
treatment and most-favoured-nation treatment; lays down general rules
to be met by the procedures for the acquisition and maintenance of
IPRs; and provides transition arrangements.
The
IPRs covered by the Agreement are
-
copyright and related rights
(rights of performers, producers of phonograms and of broadcasting
organizations),
-
trademarks,
-
geographical indications,
-
industrial designs,
-
patents,
-
layout-designs of integrated
circuits and
-
undisclosed information.
The
Agreement derives its definitions of minimum standard of IP protection
from the main existing international conventions negotiated under
the auspices of the World Intellectual Property Organization (WIPO).
As a general rule, Members are required to comply with the substantive
provisions of
-
the Berne Convention on the
Protection of Literary and Artistic Works,
-
the Paris Convention on the
Protection of Industrial Property, and
-
the Washington Treaty on Intellectual
Property in Respect of Integrated Circuits
The
Agreement specifies a number of additional standards for each category
of IPRs to define the key issues of protection:
-
the subject matter to be protected,
-
the scope of the rights to
be granted and
-
the term of protection.
Members
are permitted to limit the scope of rights within certain bounds,
including to grant compulsory licences under certain conditions, and
to take measures to prevent abusive anti-competitive practices. Procedures
for consultations and exchange of information among Members are provided
to facilitate action against anti-competitive practices.
The
Agreement exempts the issue of the exhaustion of IPRs from the scope
of dispute settlement - although national treatment and MFN are covered.
It recognizes the right of countries to adopt measures consistent
with its provisions to protect public health and nutrition, and to
promote the public interest in sectors of vital importance.
The
provisions on enforcement are aimed both at ensuring that effective
procedures are available and that such procedures are not abused or
applied in such a manner as to create barriers to legitimate trade.
The
enforcement provisions cover:
-
civil judicial procedures
and remedies, including provisional measures,
-
procedures for obtaining the
assistance of the customs authorities to prevent the importation
of counterfeit and pirated goods, and
-
criminal procedures to be
available in cases of wilful counterfeiting or piracy on a commercial
scale.
Detailed
provisional and border measures are laid down to safeguard against
abuse. Members are not obliged to put in place a special judicial
system for the enforcement of IPRs and no obligation is created with
respect to the distribution of resources as between enforcement of
IPRs and of other laws.
Some
developing countries are concerned by the obligation to protect inventions
in the area of pharmaceutical and agricultural chemical products.
The solution included in the Agreement clarifies that developing country
Members which do not at present provide product patent protection
in an area of technology will have up to 10 years to introduce it.
In
the case of pharmaceutical and agricultural chemical products, members
must accept the filing of patent applications from the beginning of
the transitional period. Though the patent need not be granted until
the end of this period, the novelty of the invention is preserved
as of the date of filing the application. If marketing of the relevant
pharmaceutical or agricultural chemical is authorized during the transitional
period and certain other conditions are met, the developing country
Member concerned must offer an exclusive marketing right for the product
for five years, or until a product patent is granted, whichever period
is shorter.
